THE BLADE/DAVE ZAPOTOSKY
The criminal conviction of a former Ottawa Hills police officer seen on video shooting a motorcyclist in the back has been reversed and a new trial ordered, the Ohio 6th District Court of Appeals ruled Friday.
Thomas White, 30, was found guilty in Lucas County Common Pleas Court on May 14, 2010, of felonious assault with a gun specification for the May, 2009, shooting of Michael McCloskey. The bullet severed Mr. McCloskey’s spine, paralyzing him from the waist down.
White, a part-time police officer at the time, was sentenced in June, 2010, to 10 years in prison but has remained free on $100,000 bond pending his appeal. He has since moved from Toledo and could not be reached for comment Friday.
Mr. McCloskey also could not be reached for comment. His mother, Darlene Thorn, said that the family wanted to digest the information first.
“I just feel like I hit a brick wall,” she said. “How can this be?”
In the 2-1 opinion, the appellate court reversed White’s conviction and remanded it back to common pleas court for a new trial. The panel ruled that the jury was not given proper instructions of law and so did not have proper information before deliberations.
The appellate court also dismissed the gun specification from the charge with prejudice, meaning that even if the case is retried, White could not be charged with the additional specification. A gun specification is punishable by a mandatory prison sentence of three years.
The prosecutor’s office issued a statement Friday saying that it intends to appeal the reversal to the Supreme Court of Ohio.
Court of Appeals Judge Stephen Yarbrough wrote the 87-page opinion, which was joined by Judge Peter Handwork. Although agreeing on some points, Judge Arlene Singer dissented with the majority on their reasons for reversal.
In the appeal filed in March, 2011, White’s attorney argued six contentions, including that the officer was acting under a good-faith mistake and so should have immunity from criminal prosecution. Also argued was that the convictions were legally insufficient because he did not act knowingly to harm.
Judges Yarbrough and Handwork disagreed that White had immunity from prosecution and that evidence was insufficient to convict on the charge of felonious assault. However, they agreed with White’s assertions that the jury was not given the proper instructions on deadly force and that “a separate instruction on mistaken belief” should have been included.
“This is not just an academic error,” the opinion stated. “Because the jury was improperly instructed on [the issue of deadly force standard], reverse is required.”
The appellate court ruled that jurors potentially could have reached a different verdict had they been instructed on the issue of mistaken belief, even though that was not an argument made in White’s appellate brief.
“Here, the state presented no evidence — none — that White shot McCloskey for any reason other than from an instantaneous inference that the ‘reaching movement’ of McCloskey’s right arm signaled the drawing of a weapon. Nor has the state ever suggested, here or during trial, that his belief was not honestly held,” the opinion said. “In hindsight, of course, White’s on-scene belief was tragically mistaken, but the jury might plausibly have found it reasonable if they had been instructed on the defense,” it stated.
Judge Gary Cook, who presided over the case, could not be reached for comment late Friday.
In all trials, instructions are given to jurors before deliberations begin. In unique criminal cases where standard jury instructions do not exist, judges often request that both sides submit proposed directions for the panel. This was the case with the White trial. Those instructions were reviewed by the court with input from both sides.
Although Judges Yarbrough and Handwork said the instructions given at the conclusion of White’s trial included errors, Judge Singer noted in her dissent that the directives “closely followed the proposed instructions submitted by [defense] counsel.”
“In this case, the jury, after viewing the videotape multiple times, was asked to determine whether or not appellant’s actions in shooting McCloskey were reasonable under the circumstances. The jury determined that his actions were not reasonable under the circumstances,” she wrote. “Upon review of the jury instructions, it is my conclusion that the instructions were legally correct and based on the evidence presented at trial. Further, I find no basis to conclude that the instructions as given in this case misled or confused the jury.”
Attorney Jerry Phillips defended White during the officer’s week-long trial in 2010. When learning of the reversal, Mr. Phillips said Friday that he was thrilled for his client.
“The whole thing is a tragic situation. Two lives were basically destroyed as a result of this event, but I don’t think that’s cause for Mr. White to be convicted,” he said. “It was a tragic case from many aspects, tragic that, in my opinion, Mr. White was wrongfully convicted and tragic that Mr. McCloskey suffered life-altering injuries.”
A key piece of evidence shown during the trial was a video from the dashboard camera of White’s patrol car. The 14-minute video begins several minutes before White activates his lights and sirens and continues until paramedics arrive to care for the wounded motorcyclist.
It shows White firing his weapon about three seconds after he exited his patrol car, followed by several minutes of the fallen motorcyclist.
White’s appellate attorney, Deborah Rump, said she had been in contact with the former officer about the court’s decision but said he did not want to comment. She noted that the appellate court took 10 months since hearing oral arguments in the case to make a decision and “obviously looked at all the evidence.”
“Nobody wins,” she said. “Two lives intersected and it was a tragic end. But it’s for the courts to decide if the trial was fair and I think the 6th District got it right.”
In her dissenting opinion, Judge Singer agreed with her colleagues’ decision to deny White’s claims of immunity and insufficient evidence but disagreed with the opinion to reverse.
Instead, she wrote that she believed that if the Ohio legislature intended to exempt working police officers from possible gun specifications, it would have been written into law. Also, Judge Singer wrote in her 21-page dissent that the instructions given during White’s hearing did not meet the “standard for abuse of discretion.”
Jeff Lingo, chief of the criminal division for the prosecutor’s office and one of the assistant prosecutors who tried the case, said that the office was “deeply saddened” by the appellate court’s decision and disagreed with the opinion.
“This office has provisionally reviewed the 108-page decision and based upon that review, intends on filing an appeal with the Ohio Supreme Court,” he said. “The State of Ohio believes this case contains questions of substantial constitutional issues as well as public or great general interest.”
Two of the factors considered by the state supreme court when deciding whether to hear a discretionary appeal are whether constitutional issues are involved as well as if it is a case of great public importance.
The appellate court’s decision is stayed pending appeal with the high court. The ruling would have no impact on a civil case filed in U.S. District Court in Toledo and recently settled.
In October, Mr. McCloskey settled a civil lawsuit in federal court against the village of Ottawa Hills.
According to the settlement agreed to out of court, Mr. McCloskey will receive a total of $5 million from the village that includes payment for medical expenses. The 14-page document also outlined details for an initial lump sum and additional periodic payments that span the remainder of Mr. McCloskey’s life.
As part of the agreement, the parties were not to speak of the terms of the settlement.
Contact Erica Blake at: firstname.lastname@example.org or 419-213-2134.